Despite detractors, age-old privilege likely to remain

By DERRICK NUNNALLY
Milwaukee Journal Sentinel
Posted: Aug. 6, 2004

After years of schooling and months of cramming, more than 150 would-be
Wisconsin lawyers converged on Madison last week to take the bar exam, just like
aspiring attorneys in every other state.

But no one from the law schools at Marquette University or the University of
Wisconsin was among them.

It's the same way nearly every year, thanks to one of the first legalities
that students at both schools commit to memory: Wisconsin is the only state in
the country to maintain a "diploma privilege" that exempts most
graduates of the state's law schools from taking the bar exam.

This means nearly two-thirds of Wisconsin's 21,000-plus licensed attorneys
never had to take the state bar exam, including 33 of Milwaukee County's 47
circuit judges, six of the seven state Supreme Court justices, Mayor Tom Barrett
and Attorney General Peg Lautenschlager.

Supporters of diploma privilege say it forces Wisconsin law students to focus
on the entirety of their course work, instead of just the parts likely to show
up in the two-day test.

"It's a more efficient use of the applicants' time and my time,"
said Gene Rankin, director of the Board of Bar Examiners. "I think it's a
better guarantee of a broad range and ability."

The system has survived so long in Wisconsin without any serious opposition
against it that critics say too little attention has been paid to its inherit
inequities.

Wisconsin's diploma privilege goes back 134 years - 71 for Marquette students
- and has outlasted similar rules in a few other states, mostly in the South.
Besides Wisconsin, the last holdouts opted in the 1980s to require the bar exam
for all bar applicants: Mississippi in 1981, Montana in 1983 and West Virginia
in 1988.

Others embraced exams

"We thought we were in the dark ages because we didn't require people to
pass the bar," said West Virginia Supreme Court Justice Larry V. Starcher,
whose degree from the state's law school came with a bar membership.

Starcher noted that even though the University of West Virginia's law school
has close ties with the state's Supreme Court, state officials were sensitive to
outsiders regarding the state as somewhat backward. Hence, the change.

And in Mississippi, a universal bar exam took the place of diploma privilege
when the state got a second law school.

"I think it improved the professionalism of the bar and put us in line
with most other states," said U.S. District Court Judge Mike Mills, a
member of the last University of Mississippi law class to skip the exam,
"but I'm mighty glad I didn't have to take it."

Occasionally, Wisconsin law students voluntarily take the exam. By Rankin's
recollection, it happened twice in the last decade, both times because
individual UW students wanted to practice law in states that required the test.

Why Wisconsin's different

Both Wisconsin law schools have extensive core-curriculum requirements that
students have to meet to qualify for diploma privilege, and the state Supreme
Court monitors the quality of education each offers. There is also a
"character and fitness" requirement by which a handful of attorney
candidates are denied the right to practice each year.

In a letter to the American Bar Association defending diploma privilege,
Wisconsin Supreme Court Chief Justice Shirley Abrahamson wrote that it "is
rigorously managed and succeeds in its goal of maintaining a qualified
Bar," and noted that Marquette and UW-Madison students often fare well on
other states' bar examinations, though current statistics were unavailable.

Also, a 2002 survey by the American Bar Association put Wisconsin in the
middle of the pack - 18th out of 48 responding jurisdictions - in the average
number of complaints per licensed attorney.

Kenneth B. Davis Jr., dean of the UW Law School, said he became a fan of the
privilege after teaching in California.

"The class had less patience with what I considered very fruitful and
important discussions about legal policy and lawyer issues," Davis said,
" . . . because they were so driven to focus on things that would be on the
bar exam."

Like Davis, Marquette law dean Joseph D. Kearney took the Wisconsin bar exam.
Also like Davis, he doesn't think his students need to do it.

"One thing it does is to give the law schools in the state at least a
small competitive advantage in recruiting in-state talent," Kearney said.

Policy has critics

The diploma privilege has its detractors. Wisconsin Public Service Commission
attorney Steve Levine debated Rankin in the pages of the state bar's magazine,
Wisconsin Lawyer, in 2002. Levine argued that diploma privilege should either
apply to graduates of any accredited law school or be struck down.

"I think there are a lot of inconsistencies that could be cleared up if
Wisconsin went to one standard for everybody," Levine said recently.

He added that the odds have historically been against a change, because
graduates from out-of-state law schools have long made up a small percentage of
the Wisconsin bar, and the Board of Bar Examiners has ties to both UW and
Marquette. But he thinks the recent increase in outsiders - more than 13,000 of
the roughly 42,000 state bar members as of this spring - could boost the chances
of changing diploma privilege.

"It's obviously something to protect University of Wisconsin and
Marquette graduates," Levine said. "Nothing could be more
blatant."

State Appeals Judge Ralph Adam Fine, a Columbia University law graduate, said
requiring the bar exam would, in any case, keep some people from becoming
lawyers despite their diplomas. He said that's not necessarily bad.

"We force doctors to take exams before they can be licensed, and in my
view, people who seek legal guidance deserve no less of a protection," Fine
said. "Now, do I expect it ever to happen here? It's a marketing tool,
frankly, and the politics of it is that I just don't think it's going to
happen."